EVEREADY INSURANCE COMPANY v. DeLEON

ORDERED that the order is reversed, on the law, with one bill of costs, the respondents' respective motion and cross motion are denied, the plaintiff's cross motion is granted, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the appellant is not obligated to defend or indemnify its insured in the underlying personal injury action.

Contrary to the Supreme Court's determination, the appellant properly and timely mailed the notice of disclaimer to the attorney of record for the plaintiff in the underlying action despite information that the plaintiff had retained new counsel. Because the appellant was not in receipt of a duly-executed consent to change attorney form or court order substituting counsel in accordance with CPLR 321, it was proper to mail the notice of disclaimer to the attorney of record (see, Moustakas v. Bouloukos, 112 A.D.2d 981; see also, Candeloro v. Candeloro, 133 A.D.2d 731).

Since this is a declaratory judgment action, the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the appellant is not obligated to defend or indemnify its insured in the underlying personal injury action (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).

BRACKEN, P.J., LUCIANO, FEUERSTEIN and ADAMS, JJ., concur.